Shammas v Canberra Institute of Technology
[2014] ACAT 2
•22 January 2014
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
SHAMMAS v CANBERRA INSTITUTE OF TECHNOLOGY
(Discrimination) [2014] ACAT 2DT 8 of 2013
Catchwords: DISCRIMINATION – Respondent’s application to strike out complaint as frivolous and vexatious - referral of complaint by the Human Rights Commission: Applicant’s complaint is based on claim that she was subject to ongoing surveillance by Australian Security Intelligence Organisation (ASIO) and Canberra Institute of Technology (CIT) – allegation of discrimination on the ground of race in the area of education – allegation of victimisation – no objective evidence to support the Applicant’s allegations – whether the Applicant’s Application (complaint) is foredoomed to fail
List of legislation: ACT Civil and Administrative Tribunal Act 2008 (ACT), ss. 6, 7 and 32
Discrimination Act 1991 ss. 7, 8, 18, 68, 73 and 121A
Human Rights Act 2004 ss. 8, 12, 21 and 40BHuman Rights Commission Act 2005 ss.53A and 78
List of cases: Burton v President of the Shire of Bairnsdale [1908] 7 CLR 76
Council of the Law Society of the ACT & The Legal Practitioner [2011] ACAT 49
Gindy & Chief Minister & ACT Government and Ors [2011] ACAT 67
Jamieson Mary v The Australian Workers Union & Another [1999] VCAT 628
Jones v Dunkel (1959) 101 CLR 298
Pitt v One Steel Reinforcing Pty Ltd [2008] FCA 923
Shammas & Canberra Institute of Technology [2012] ACAT 24Shammas v Canberra Institute of Technology [2012] ACTSC 197
The State Electricity Commission of Victoria v Rabel [1996] VSC 78
Walton v Gardiner [1993] 177 CLR 378Warren Gardner & Julie Beaver v ACT Planning and Land Authority [2010] ACAT 64
Tribunal: Ms E. Symons – Presidential Member
Date of Orders: 22 January 2014
Date of Reasons for Decision: 22 January 2014ACT CIVIL & ADMINISTRATIVE TRIBUNAL DT 8 of 2013
BETWEEN: BAN SHAMMAS
Applicant
AND:CANBERRA INSTITUTE OF TECHNOLOGY
Respondent
TRIBUNAL: Ms E. Symons - Presidential Member
DATE: 22 January 2014
Upon being satisfied that the Application DT13/8 is frivolous and vexatious, the Tribunal orders that the Application be dismissed.
………………………………..
Ms E. Symons - Presidential Member
REASONS FOR DECISION
Background
1.On 8 March 2013, the Applicant made a complaint to the ACT Human Rights Commission (Commission) that Mr C, a lecturer at the Canberra Institute of Technology (CIT), had discriminated against her on 15, 22 and 29 March 2012 on the ground of race in the area of education. The Commission wrote to the Applicant on 15 May 2013 and advised her that the Commission had closed her complaint as lacking in substance, pursuant to section 78(2) of the Human Rights Commission Act 2005 (HRC Act).
2.On 6 June 2013, the Applicant requested that the Commission refer her complaint to the ACT Civil and Administrative Tribunal (Tribunal) in accordance with section 53A of the HRC Act. The Commission referred the complaint to the Tribunal by letter dated 20 June 2013 and notified the Applicant by letter also dated 20 June 2013 that her complaint had been referred to the Tribunal as requested.
3.The Tribunal listed the matter for a directions hearing on 27 June 2013 when a time table was set for the parties to file documentation. The Applicant filed her Statement of Facts and Contentions on 26 July 2013 (Applicant’s SOFC). The Respondent filed its Statement of Facts and Contentions on 6 August 2013 (Respondent’s SOFC).
4.On 28 August 2013, the Respondent filed an Application for Interim or Other Orders to have the Application (DT 13/8) struck out (Strike Out Application) on the basis that it was frivolous and vexatious, pursuant to section 32(2)(b) of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (ACAT Act).
5.On 29 August 2013, the parties attended a directions hearing before the Tribunal. Presidential Member Professor Spender made directions requiring the Respondent to file documentation including submissions in support of its Strike Out Application by 26 September 2013; requiring the Applicant to file documentation including her submissions in relation to the Strike Out Application by 24 October 2013 and listed the Strike Out Application for hearing on 15 November 2013. On 23 October 2013 the hearing date was changed to 19 December 2013.
6.Dr Jarvis of Counsel appeared for the Applicant at the hearing on 19 December 2013, instructed by the ACT Government Solicitor. Ms Shammas represented herself. The hearing proceeded by way of oral argument.
7.Section 121A(2) of the Discrimination Act 1991 provides that conduct engaged in on behalf of a person by a representative of the person is taken to have been engaged in by the person if the conduct was within the scope of the representative’s actual or apparent authority. Both parties agreed that Mr C, who was employed by the Respondent and had been named as the Second Respondent, should be removed from the proceedings. Orders were made accordingly on 19 December 2013.
8.The Tribunal reserved its decision about the Strike Out Application at the conclusion of the hearing.
The Powers of the Tribunal
9.The tribunal’s powers were considered by the Tribunal in an earlier decision of Gindy & Chief Minister & ACT Government and Ors[1] (Gindy) where it stated that “the tribunal may only do things, make decisions and exercise powers which a law specifically authorises it to do”.
[1] [2011] ACAT 67 at [13]
Relevant Legislation
10.The Respondent relied on section 32 of the ACAT Act which provides:
Frivolous and vexatious applications
(1) This section applies if—
(a) the tribunal considers an application is frivolous or vexatious; or
(b) a person who has made an application to the tribunal has been dealt with as frivolous or vexatious by a court or tribunal in Australia.
(2) The tribunal may, by order, do 1 or more of the following:
(a) refuse to hear the application;
(b) dismiss the application;
(c) direct that the person who made the application not make a subsequent application to the tribunal of the kind stated in the direction—
(i) within a stated period of time; or
(ii) without the leave of the tribunal.
(3) The tribunal may make an order under subsection (2) on its own initiative or on application by a party.
(4) The tribunal may vary or revoke a direction given under subsection (2) (c)—
(a) on its own initiative; or
(b) on application by the person who is the subject of the order.
Note. The tribunal must observe natural justice and procedural fairness
(see s 7).
11.As also stated in Gindy[2], this generic power is used by the Tribunal in relation to various matters that come before it.
[2] At [16]
Ms Shammas’s Application
12.Ms Shammas states in her SOFC that she seeks review of the actions of the CIT Reid in relation to events that occurred in the period mid February 2012 to the end of May 2012.[3] In her complaint, which at her request was referred to the Tribunal by the Commission, she alleges that the CIT, through Mr C, made several unpleasant comments which are the subject of her complaint on 15, 22 and 29 March 2012. When it was demonstrated to the Commission that she had not attended class on 15 March 2012, she did not pursue her complaint for that date. The Tribunal will return to the matter/s being reviewed by the Tribunal under Preliminary Issues.
[3] Applicant’s Statement of Facts and Contentions, paragraph 1
13.Ms Shammas was enrolled in part time study for Certificate III Accounting. She was a student at the CIT in a class called Work Effectively in the Financial Services Industry taught by Mr C on Thursday evenings from 5.30pm to 9.30pm from mid February 2012 to 24 May 2012. She had previously brought discrimination proceedings in the tribunal against the CIT.[4] She said[5] that the decision in her previous discrimination case (the March 2012 decision) was handed down on 8 March 2012. She intended to appeal the March 2012 decision and filed her appeal on 4 April 2012.
[4] Shammas & Canberra Institute of Technology [2012] ACAT 24
[5] Applicant’s Statement of Facts and Contentions, paragraph 20
14.Ms Shammas alleged, for this matter, that during this period she was subject to ongoing surveillance by the Australian Security Intelligence Organisation (ASIO) and that ASIO employees and CIT staff were cooperating by sharing her private information and breaching her privacy.
15.She particularised, as follows, the actions[6] she relied on in her complaint:
[6] Applicant’s Statement of Facts and Contentions, paragraphs 23 and 24
a.Mr C repeating words, namely, ‘responsibility’ and ‘consequences and accountability’ in his lectures, which words she herself had used in a meeting with a social worker at Centrelink’s city branch on 1 March 2012.
b.The CIT and its staff, including Mr C, were aware from ASIO and CIT’s cooperation that she intended to appeal the tribunal decision of 8 March 2012. She said that Mr C created oppressive and suppressive circumstances for her in his classes by breaching her privacy and making unpleasant comments that reflected private information and made direct reference to her nationality ‘Iraqi woman’ in order “to stress, intimidate and affect her psychologically to give up and/or discontinue appealing the decision.” [7]
[7] Applicant’s Statement of Facts and Contentions, paragraph 28
c.She said “[Mr C], while discussing topics of law subject on 22 and 29 March 2012, made inappropriate comments publicly in front of all the students relate to appeal a decision, discrimination, rights of new arrival to Australia, corruption in Australian courts and he made unpleasant comment by directly referring to the applicant’s nationality ‘Iraqi woman’”.[8]
[8] Applicant’s Statement of Facts and Contentions, paragraph 33
d.“Although those comments said publicly as part of presenting Law subject, it was directed to the applicant to affect, intimidate and make her give up appealing the decision of Ms Lennard especially that some of the comments relate to make students sceptical about judges’ honesty and Australian justice in general” and “[t]hose comments said by [Mr C] constitutes for unfavourable treatment and discrimination against the applicant on the ground of her race ‘nationality’ to victimize her because she was proceedings her case against CIT in ACAT.”[9]
[9] Applicant’s Statement of Facts and Contentions, paragraphs 34 and 35
16.Ms Shammas said that[10]:
[10] Applicant’s Statement of Facts and Contentions, paragraphs 2, 3 and 4
a.the actions of CIT and staff were in breach of her rights under the Human Rights Act 2004 (HRA) sections 8 (Recognition and Equality before the Law), 12 (Privacy and Reputation) and section 40B (Public authorities must act consistently with human rights);
b.she has been discriminated against and victimized by the CIT and its staff pursuant to the Discrimination Act 1991 sections 7 (race), 8 (the person treats or proposes to treat the other person unfavourably because the other person has an attribute referred to in section 7), 68 (it is unlawful for a person to subject someone else to any detriment because that person has begun a proceeding in ACAT), and 73 (aiding unlawful acts); and
c.as a result of the conduct and otherwise of the CIT and its staff she suffered aggravation to her injury and loss and she seeks compensation for the same.
17.Essentially, the Applicant’s complaint alleged that on 22 and 29 March 2012 the Respondent engaged in conduct that was unfavourable to the Applicant with the intention of impeding the appeal she intended to lodge from the March 2012 decision. The unfavourable conduct was discriminatory on the basis of her race and constituted victimisation under the Discrimination Act because she had commenced proceedings in the tribunal. The conduct aggravated her injury and loss. She seeks compensatory damages, aggravated damages and exemplary damages.
The Respondent’s Interim Application
18.The Respondent relied on the following grounds in the interim application:
a.The Applicant’s evidence, even if it was accepted (which it is not), does not substantiate her claim under the Discrimination Act 1991.
b.The Applicant’s application has no reasonable prospects of success.
c.The Applicant’s claim is foredoomed to fail (Walton v Gardiner)[11].
[11] (1993) 177 CLR 378 at 393
19.The Respondent referred the Tribunal to the following three decisions in which the Tribunal has exercised its powers under section 32(2)(b) of the ACAT Act, namely Gindy,Warren Gardner & Julie Beaver v ACT Planning and Land Authority[12] (Gardner & Beaver) and Council of the Law Society in the ACT & The Legal Practitioner[13] (ACT Law Society).
[12] [2010] ACAT 64
[13] [2011] ACAT 49
20.These three decisions identify the circumstances in which the Tribunal will exercise its powers under section 32(2)(b) to dismiss an application where :
a.the application is foredoomed to fail (as in Gardner & Beaver);
b.there is no arguable case (as in Gindy);
c.the application lacks substance in respect of any element that is essential for the complainant to prove (as in Gindy); and
d.there is a cause of action which has no reasonable prospect of success (as in ACT Law Society).
21.The Respondent contended that Ms Shammas’s Application was foredoomed to fail as the material she has filed in support could not constitute a case described by her application.
The Discrimination Complaint
22.In relation to her claim that she was subjected to unlawful discrimination the Respondent submitted that the Applicant must establish[14] that she was treated unfavourably by the CIT; and that the unfavourable treatment occurred in an area of public life and it occurred because of a particular relevant attribute (race).
[14] Gindy v Chief Minister & ACT Government and Ors [2011] ACAT 67, paragraph 33
23.
Ms Shammas alleged that she was treated unfavourably in Mr C’s classes on
22 and 29 March 2012 as she was the target of comments allegedly made by
Mr C that were designed to “intimidate and affect her psychologically to give up and/or discontinue appealing the decision”.[15] The evidence in Mr C’s statement to the Commission is that he denied calling Ms Shammas an “Iraqi woman” as he did not know her racial background at that time and he denied each and every other claim made by her. He also stated that he did not believe that he or the CIT impeded Ms Shammas in any way as she successfully completed the subject in question.
[15] Applicant’s Statement of Facts and Contentions, paragraph 28
24.The Respondent submitted that it was for the Tribunal to find as a question of fact whether or not the comments Ms Shammas alleged were made by Mr C which provides a reason for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed.[16]
[16] Jones v Dunkel (1959) 101 CLR 298
25.The Respondent emphasised that Ms Shammas went on to successfully complete the subject Mr C was teaching at the CIT. She was not impeded from lodging her appeal. She lodged her appeal with the Tribunal on 4 April, 2012, after the two classes on 22 and 29 March 2012 in which she claimed she was treated unfavourably. The CIT was not notified of her appeal until informed by its solicitor on 1 May 2012.
26.The Respondent submitted that the CIT could not have known that the Applicant intended to lodge an appeal until, at the earliest, the day its solicitor was notified of the appeal, on 30 April 2012. The CIT received no complaints from other students in the classes in which Ms Shammas alleges Mr C made the comments and Mr C has denied the allegation that he knew of Ms Shammas’s intention to appeal. He further denied the allegations by Ms Shammas that he made reference to corruption in the Australian Judicial system or made discriminating comments in relation to Ms Shammas’s nationality in his classes.
27.The Respondent submitted, on the available material, that the Tribunal could not be satisfied that Ms Shammas was treated unfavourably by the CIT or Mr C and as this is an essential element of the application[17] the Tribunal should dismiss Ms Shammas’s Application pursuant to section 32(2)(b) of the ACAT Act.
[17] Gindy v Chief Minister & ACT Government and Ors
28.In relation to the matters stated in paragraph 22 above, the Respondent conceded that the alleged conduct was in an area of public life, in the area of education.[18] For Ms Shammas to succeed in establishing unlawful discrimination she must prove that the conduct she alleges was undertaken because of a relevant attribute, namely her race.
[18] Section 18 Discrimination Act 1991
29.The Respondent submitted that Ms Shammas had not provided any objective evidence to support this part of her claim. The alleged comments were made to an entire classroom of students. If those comments were in fact made, Ms Shammas has not provided any evidence that the comments were directed towards her. Nor has Ms Shammas provided objective evidence to support her assertion that Mr C knew of her race or that he took any action based on that knowledge.
30.The Respondent requested that Ms Shammas’s discrimination application be dismissed as it is a cause of action which has no reasonable prospect of success and is foredoomed to fail.
The Victimisation Complaint
31.The Respondent submitted[19] that to establish victimisation[20] the Applicant must satisfy the Tribunal that she was subjected to a detriment and that she was subjected to that detriment because she had begun proceedings in the Tribunal.
[19] Respondent’s Statement of Facts and Contentions, 6 August 2013, page 8, paragraph 9
[20] Section 68 of the Discrimination Act 1991
32.The Respondent submitted that Ms Shammas had presented no objective evidence to establish that claim. She did lodge an appeal with the Tribunal within the time for lodging appeals. Although that appeal was ultimately unsuccessful at the hearing, Ms Shammas did not suffer any detriment in lodging that appeal.
33.The CIT was not informed of the appeal until 1 May 2012, the day after the ACT Government Solicitor was notified of the appeal on 30 April 2012. The Respondent’s contention was that it could not have acted on information it did not know and it could not have subjected Ms Shammas to a detriment because of her intention to commence appeal proceedings when it was unaware of her having that intention.
34.In relation to Ms Shammas’s assertion that Mr C was made aware of her private information, including her intention to appeal the Tribunal decision, through ASIO sharing this information with the CIT and through Mr C breaching her privacy in the classroom, the Respondent submitted that Ms Shammas has not and will not be able to provide objective evidence to support this allegation. To the extent that she has annexed letters from the Office of the Inspector General of Intelligence and Security in response to her requests seeking confirmation whether ASIO is monitoring her, the Respondent drew the Tribunal’s attention to the fact that these letters[21] indicated ASIO’s standard practice is to neither confirm or deny its interest in any person, and do not assist the Applicant.
[21] Annexure 11 Applicant’s Submissions
35.The Respondent requested that Ms Shammas’s victimisation application be dismissed as it is a cause of action which has no reasonable prospect of success.[22]
[22] Council of the Law Society of the ACT & The Legal Practitioner [2011] ACAT 49 at [12]
The March 2012 decision
36.Dr Jarvis drew the Tribunal’s attention to the similarities in the present proceedings and the proceedings before Senior Member Lennard which led to the March 2012 decision. In both proceedings the Applicant claimed that her home was bugged by ASIO and information gleaned was shared with the CIT and used to discriminate against her in class.
37.Dr Jarvis provided the Tribunal with a copy of Senior Member Lennard’s decision dated 8 March 2012 describing it as “the foundation for the present matter”. Ms Shammas’s complaint in the present matter largely focussed on conduct by the CIT and Mr C which she alleged was designed to deter her from proceeding with an appeal from the March 2012 decision.
38.The Tribunal noted that, at page 6 of her complaint to the Commission, Ms Shammas stated:
Worth mentioning that what [Mr C] said is not a personal comment or part of the curriculum of Law subject but rather it is what CIT’s authorized people asked him to say because during the classes he was getting lots of phone calls or messages and he was accordingly say his comments.
Worth mentioning that I was under surveillance by ASIO during that time and they were with the cooperation of CIT in breach of my privacy. I have evidence to prove that if needed.
39.In her SOFC Ms Shammas purported to explain at paragraph 27 of that document how Mr C acted as he did, namely:
27. Because of that continuous cooperation between CIT staff and ASIO employees which relates to the applicant’s privacy, CIT and its staff were aware that the applicant had the intention to appeal the apparently biased decision of Ms Lennard. [Applicant’s emphasis] [words in square brackets added]
40.Dr Jarvis submitted that Ms Shammas’s allegation that CIT, through ASIO, were aware of something in Ms Shammas’s mind and were seeking through Mr C to deter her from lodging her appeal by making unpleasant comments is untenable, incapable of proof and therefore an abuse of the Tribunal’s processes. He submitted that it ought to be dismissed. Dr Jarvis further submitted that the allegation on which the Application is brought is so manifestly fanciful and lacking in any evidentiary support, and that it was a hopeless or untenable application.
41.Dr Jarvis described the current allegations as “more of the same [allegations which were subject of the March 2012 decision].” In the March 2012 decision Senior Member Lennard, at paragraph 17, stated[23]:
“The Applicant asserted generally that her home was bugged, that ASIO had hidden cameras and microphones in her house and was recording her private conversations and providing information about those private conversations to the CIT staff and/or to the CIT students.”
[23] Shammas & Canberra Institute of Technology [2012] ACAT 24
42.Dr Jarvis submitted that allegations Ms Shammas made against Teacher B in the hearing with which the March 2012 proceeding was concerned, have a remarkable similarity to the allegations made against Mr C in the present complaint. Senior Member Lennard’s comments at paragraph 75 are entirely applicable to the present allegations. Senior Member Lennard said at paragraph 75[24]:
75. The Applicant, apart from asserting that the conduct came after her complaints, produced no evidence to support the contention that the conduct was triggered by, or motivated by, or actuated by the fact that she had made a complaint…..The conversation with Teacher B, while it did happen, has been wrongly interpreted. It is not sufficient to say, ‘This is how it made me feel, therefore, this is the reason’-it is not sufficient to say; ‘I feel he had that conversation with me because I had made a complaint’. That does not prove that that is the reason for it. We need much more than subjective beliefs, we need some objective evidence.
[24] Shammas & Canberra Institute of Technology [2012] ACAT 24
43.
In the present matter Mr C’s remarks are alleged to have been made in an ordinary classroom full of students in a law component of the course
Ms Shammas was undertaking.
44.Dr Jarvis submitted that Ms Shammas has persisted in her beliefs that ASIO is conducting surveillance of her and that her interpretation of words said or remarks made during class at the CIT is correct, notwithstanding evidence from the author of those words or remarks to the contrary. As Senior Member Lennard said at paragraph 83 of the March 2012 decision – “… the Applicant’s belief ... that she has been subject to harassment … [is] in ACAT’s view, strongly and genuinely held by the Applicant, but that is not sufficient to establish any of the conduct as a matter of fact.”
45.Dr Jarvis also drew the Tribunal’s attention to paragraph 82 of the March 2012 decision where Senior Member Lennard referred to medical records and evidence relating to Centrelink applications produced by the Respondent at that hearing which showed several diagnoses of paranoid delusions. That Tribunal did not make any findings about that.
46.Dr Jarvis pointed out, in the present matter, that Ms Shammas annexed to her SOFC copies of pathology reports, Canberra Hospital Records, ACT Health Assessments, a Centrelink Job Capacity Assessment and medical reports from Companion House dated 23 June 2011, 8 September 2011, and 7 July 2012. In the 7 July 2012 report Dr Christine Phillips stated that Ms Shammas’s diagnosis by the Belconnen Mental Health Service was of “mild depression and anxiety with persecutory ideas as an Axis II diagnosis” and “It is important to state that an Axis II diagnosis is not a psychiatric disorder, but rather a statement of a predisposing set of thoughts or beliefs.”
47.The Respondent’s position was that while the Tribunal could be satisfied that the medical evidence may provide a possible alternative explanation for Ms Shammas’s beliefs, it is not necessary for the Tribunal to make any findings of fact in relation to the Applicant’s health when considering the Strike Out Application.
Ms Ban Shammas’s submissions
48.Ms Shammas submitted that the Tribunal could not dismiss her complaint unless her complaint clearly disclosed no arguable case and that the onus was on the CIT to show that her complaint lacked an arguable case.
49.Ms Shammas said that she relied on her SOFC filed on 27 July 2013, the Response filed 28 August 2013 and her Submissions filed 24 October 2013 and the attachments to each of these documents. She submitted that the attachments showed that she has an arguable case as they prove that she has been subjected to ASIO surveillance.
50.Ms Shammas told the Tribunal that she believed, as a result of her complaining about an Immigration office(r) in March 2010 breaching her privacy, she had been referred to ASIO and that she has suffered breaches of her privacy and other unpleasant behaviour under ASIO since. It is her case that ASIO and the CIT share responsibility for “all my suffering’ as she has been the victim of ASIO and the CIT cooperating and breaching her human rights. She described her case as ‘a community scandal.’
51.Ms Shammas’s case fundamentally relies on her allegation that ASIO was bugging her home and sharing some of the information gleaned, with CIT staff. She alleged this ‘information’ concerned her pursuing an appeal from the earlier discrimination complaint against the CIT which had been dismissed by a differently constituted tribunal on 8 March 2012.
52.She also alleges that CIT staff, particularly Mr C, used the information from ASIO in his lectures and made comments in class to frustrate her and to make her give up the appeal. She said that in her original complaints against the CIT in 2010, she had stated that she was Iraqi and so Mr C knew that she was an Iraqi student when she was attending his classes in 2012. She only pursued one case, namely, the discrimination matter in the Tribunal, and so Mr C’s comments could only have been about her Tribunal proceedings.
53.In relation to the present case, Ms Shammas continued to allege that there were surveillance cameras everywhere at the CIT. She said “it was inconceivable that the CIT would not have cameras.” She wanted to rely on CIT’s recording of classes in support of her present claim of discrimination. She alleged that the CIT was not telling the truth when Mr Radic, CIT Facilities Manager, said in his Affidavit filed in the previous proceedings that the CIT did not have visual or audio recording devices installed in Room B102 or in any of the counselling offices at the CIT Southside campus.
54.
Further, she alleged in the present hearing that in the March 2012 decision hearing, Dr Jarvis had withdrawn Mr Radic’s affidavit on 16 February 2012.
Dr Jarvis contested this allegation. He said that he did not withdraw Mr Radic’s affidavit. What he had withdrawn was the wording he had used when describing the affidavit being tendered, not the document itself. He had rephrased the wording and then tendered the document.
55.Ms Shammas told the Tribunal that she believed that ASIO employees interfered with the Human Rights Commissioner, Dr Watchirs, carrying out her work when investigating her present complaint and, as a result, she had been partial in her comments to her. In particular, she referred to Dr Watchirs’ statement in her letter dated 20 June 2013 to her “Please note, the ACAT does not routinely issue written reasons for its decisions. You will need to formally request such reasons if the ACAT proceeds to make a decision regarding your complaint.” and alleged that it supported her claim that Dr Watchirs was partial as this statement was designed to frustrate her and make her give up her complaints.
56.
She also alleged that ASIO influenced the CIT to ensure that Senior Member Lennard made a decision against her and in favour of CIT in March 2012 and that ASIO influenced other Tribunal members and Judges who had heard her appeals from that decision. As a result, she wrote to the Prime Minister on
13 December 2012 regarding ASIO, and has now taken the matter up with the Attorney General. She knew that her appeals from the March 2012 decision to the Appeal Tribunal, to the ACT Supreme Court and to the Court of Appeal, had not been successful. Although Senior Member Lennard’s March 2012 decision stands, Ms Shammas told the Tribunal that that decision was completely irrelevant except for the fact that Senior Member Lennard was under the influence of ASIO and she handed down a biased decision made in bad faith to protect CIT and ASIO.
CONSIDERATION
Preliminary Matters
57.Discrimination matters are referred to the Tribunal pursuant to section 53A of the Human Rights Commission Act (HRC Act). Section 9 of the ACAT Act limits the Tribunal to hearing applications that are identified in an authorising law; section 53A of the HRC Act is one such law. Sections 53A of the HRC Act and section 9 of the ACAT Act are set out at the end of the Decision.
58.The Tribunal’s hearing of a complaint on referral from the Commission, deals with the matters that were before the Commission. The Applicant complained in her SOFC that her human rights were breached[25]. To the extent that she identified rights not previously identified in her complaint to the Commission, the Tribunal will, in this decision, only deal with those matters before the Commission. The Applicant also complained in her SOFC about the actions of two students who the Tribunal will refer to as Ms M and Ms C. These actions were not included in her complaint to the Commission. They are not relevant to the present application.
[25] See paragraph 16 (a) above
59.The Applicant also raised in her SOFC[26] an incident concerning a pink phone and Mr C on 10 May 2012 and Mr C engaging in a conversation with another student. These incidents were also not included in her complaint to the Commission and are therefore not relevant to the present application.
[26] Applicant’s Statement of Facts and Contentions, page 6
60.The Applicant consistently referred to transcript extracts of separate proceedings as ‘evidence’ of matters she sought to prove in relation to Mr C. Those proceedings occurred after 22 and 29 March 2012, and cannot be evidence of what occurred in the past.
61.The Applicant made several references in her documentation and in her oral submissions to ASIO. The Respondent is not ASIO. The Respondent submitted[27] that it was unable to address allegations made against that organisation regarding surveillance of the Applicant. The Tribunal will return to this below.
The Respondent’s application
[27] Respondent’s Statement of Facts and Contentions, H [1] [2] [4]
62.The matter before the Tribunal for determination is the Respondent’s Strike Out Application. This requires the Tribunal to consider all of the matters put to it by both the Applicant and the Respondent.
63.In considering this application, the Tribunal notes the Objects and Principles of the ACAT Act. Copies of sections 6 and 7 are set out at the end of this decision. The Tribunal must observe natural justice and procedural fairness and its decision must be fair.
64.The Tribunal is also cognisant, as the Tribunal said in Gindy[28], that a decision to strike out a claim under section 32 of the ACAT Act has the inevitable consequence that the Applicant for the matter will not have access to a full hearing on the merits. This prima facie engages the Applicant’s right to a fair hearing under section 21 of the Human Rights 2004. A copy of this section is set out at the end of this Decision. The Tribunal said:[29]
...The right to a fair trial does not, in my view, mean that the tribunal cannot or should not exercise its strike-out power in a matter which it is satisfied is doomed to fail, or in a matter which lacks substance in respect of any element that is essential for the complainant to prove. The right of access to the tribunal and the right to a full hearing is not absolute. Section 32 of the ACAT Act pursues a legitimate aim of discouraging litigants from bringing claims that have no merit.
[28] at [27]
[29] at [32]
65.In Gindy[30], the Tribunal described the phrase ‘frivolous and vexatious’ as a term of art and referred to the statement by Gray J in Pitt v One Steel Reinforcing Pty Ltd[31]:
The word ‘”frivolous”, especially when coupled with “vexatious” is a technical legal term, in substance, meaning the absence of a cause of action.
[30] at [18]
[31] [2008] FCA 923 at [9]
66.As noted by the Tribunal in Gindy, this phrase has been used in the context of an action which has been made for no good reason at all or for the purpose designed to harass or annoy or which has no reasonable prospects of success[32].
[32] Council of the Law Society & The Legal Practitioner [2011] ACAT 49
67.The Tribunal is satisfied, in the present case, that Ms Shammas genuinely believes that she has been subject to unfavourable treatment and, accordingly, the Tribunal is satisfied that her Application was not designed to harass or annoy the Respondent.
68.The approach to be taken in applications for summary dismissal in the context of discrimination matters was considered by the Victorian Court of Appeal in The State Electricity Commission of Victoria v Rabel[33]. The principles were summarised in a VCAT decision of Jamieson Mary v The Australian Workers Union & Another[34]. The following aspects of the summary are relevant:
[33] [1996] VSC 78
[34] [1999] VCAT 628
(1)The respondent bears the onus of showing that the complainant's case ought not be allowed to proceed.
(2)The respondent must show that the complainant's case is obviously hopeless and untenable, or that it could on no reasonable view, justify relief.
A complaint can be dismissed or struck out if it is obviously unsustainable in law or in fact. This will include, but is not limited to, a case where a complaint can be said to disclose no reasonable cause of action.(3)A clear distinction must be drawn between the complaint and the evidence which is to be given in support of it. A complaint cannot be dismissed or struck out as lacking in substance merely because it does not in itself contain the evidence supporting the claims.
(4)The Tribunal should not apply technical, artificial or mechanical rules in coming to a view about the case that a complainant wishes to advance.
(5)The proceeding may be determined on the pleadings and submissions alone, or by allowing the parties to put forward material including affidavits and oral evidence.
(6)If the complainant indicates that the whole of their case is contained in the material before the tribunal, the tribunal is entitled to determine the strike out application by asking whether, on all the material before it, there is a question of real substance to go to a full hearing.
(7)However, if the complainant indicates that there is other evidence, they can call to support their claim and the tribunal does not permit that evidence to be called, the tribunal cannot determine the matter on the basis that the complainant's material contains the whole of their case.
(8)If the material before the Tribunal shows that there is a dispute between the parties about a fact and the material does not assist the tribunal to resolve the dispute, it will be difficult for the tribunal to be satisfied that the complaint is so lacking in substance that it should be dismissed or struck out.
(9)It is a serious matter for the tribunal, in an interlocutory proceeding
which will generally not involve the hearing of oral evidence, to deprive a litigant of the chance to have their complaint heard in the ordinary course.(10)If the respondents have satisfied the tribunal that the complaint or any part of it is frivolous, vexatious, misconceived or lacking in substance in respect of any element that is essential for the complainant to prove, then the complaint or the relevant part of the complaint should be dismissed or struck out.
69.In addition to the cases considered above the Tribunal also considered the High Court decisions of Burton v President of the Shire of Bairnsdale[35] and Walton v Gardiner[36]. In Burton v President of the Shire of Bairnsdale, O’Connor J said,
... Primâ facie, every litigant has a right to have matters of law as well as of fact decided according to the ordinary rules of procedure, which give him full time and opportunity for the presentation of his case to the ordinary tribunals, and the inherent jurisdiction of the Court to protect its process from abuse by depriving a litigant of these rights and summarily disposing of an action as frivolous and vexatious in point of law will never be exercised unless the plaintiff's claim is so obviously untenable that it cannot possibly succeed.
[35] [1908] 7 CLR 76, at [92]
[36] [1993] 177 CLR 378, page 393
70.In Walton v Gardiner Mason CJ, Deane and Dawson JJ said:
…it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can clearly be seen to be foredoomed to fail.
71.In The Legal Practitioner[37], the tribunal noted that the question before it, in considering the exercise of section 32(2)(b) of the ACAT Act was whether material filed by the Society on its face, and without testing or evaluation through cross-examination of the witnesses, could constitute a case as described in its Application. If no such case is disclosed by the material, then the application to strike out should be granted.
[37] [2011] ACAT 49, at [15]
72.The Respondent submitted[38] that the Application was foredoomed to fail as the material filed by the Applicant in support of her Application could not constitute a case as described by her Application and it should be struck out.
[38] In Respondent’s Submissions, dated 27 September 2013, Part D at page 6, at [7]
73.In this case, the Strike Out Application was considered and heard before the matter proceeded to a full hearing. The Tribunal asked Ms Shammas at the commencement of the hearing if she had filed all of the material on which she wished to rely. She said she wanted to file her lecture book and that she intended to subpoena CIT surveillance and audio visual recordings for the relevant dates, 22 and 29 March 2012.
74.The Respondent made quite detailed submissions in relation to the similarity of the current Application and the March 2012 decision application, particularly the Applicant’s allegations in the earlier proceedings that the CIT did have recording devices in the counselling rooms and in the lecture rooms and that, for the present proceedings she wanted to subpoena those recordings, albeit for a different CIT lecture room.
75.The CIT Facilities Manager, Mr Radic, had filed an Affidavit in the earlier proceedings in which he denied there were recording facilities in the rooms at CIT. Dr Jarvis submitted that it was tolerably clear from Mr Radic’s Statement that there are no visual recording devices as Ms Shammas alleged and that her version of events has no basis in reality.
76.For abundant clarity, the Tribunal is satisfied from considering all of the matters before it that Dr Jarvis did not withdraw Mr Radic’s affidavit on 16 February 2012 as the Applicant has alleged. It appears to the Tribunal that the Applicant has misunderstood what it was that Dr Jarvis was withdrawing, that is, the actual words he used to describe the document he was tendering and that he ultimately proceeded with the tender using different descriptive words.
77.In the present matter, Dr Nicole Stenlake, Executive Director, Governance and Executive Services of the Respondent, wrote to the Commission on 3 May 2013 in which she stated that the CIT “does not routinely record its lectures. There was no audio recording made of classes of 15, 22 and 29 March 2012.” Mr C also stated in his statement dated 2 May 2013 that “there are no recordings of the lectures, however all lecture notes are on eLearn …”.
78.The Tribunal is satisfied that the Applicant does not have objective evidence of such recordings. Rather she believes and alleges[39] that-
CIT as public authority, governmental and multicultural institution conducts CCTV, surveillance and audio-visual recordings in all of its active premises as part of its security policy and the same as any governmental institution or offices in Australia.
Besides that recording the applicant’s activities, meetings and conversation was a must in the applicant’s condition, because that was part of ASIO’s investigation about her while she was on CIT grounds.[39] Applicant’s Statement of Facts and Contentions, at [66]
79.The Tribunal is not satisfied that the lecture book would assist the Applicant in any way to advance her current complaints. The Tribunal noted that the Respondent agreed that the topics of “Appeals” and “Discrimination in the workplace” were discussed by Mr C during his classes.[40]
[40] Respondent’s Statement of Facts and Contentions, page 6, at F[2]
80.While it is stated in paragraph 68 at point (8) above that the tribunal cannot determine a strike out application on the basis that the complainant's material contains the whole of their case when the complainant identifies outstanding evidence they wish to obtain, for the reasons set out above the Tribunal is not satisfied that the evidence identified by the Applicant exists (audio recordings) or will in any way advance her complaint (lecture book). The Tribunal will proceed to determine the Strike Out application.
81.In matters under the Discrimination Act 1991 a complainant must establish each of the following elements in section 8 in order for a complaint of unlawful discrimination to succeed:
(a)that she was treated unfavourably by the respondent; and
(b)that the unfavourable treatment occurred in an area of public life; and
(c)that it occurred because of a particular relevant attribute.
82.In the present matter the Applicant alleges unlawful discrimination in the area of education. Pursuant to section 18(2)(c) of the Discrimination Act 1991, she must establish the Respondent discriminated against her by subjecting her to detriment.
83.The combined effect of sections 8 and 18 of the Discrimination Act, which sections are set out at the end of this Decision, means that the Applicant must establish that the Respondent-
(a)subjected her to a detriment, and
(b)knew of her protected ground (race); and
(c)the true basis of the Respondent’s act or omission was the Applicant’s race.
84.In considering whether material filed by the Applicant on its face, and without testing or evaluation through cross-examination of the witnesses, could constitute a case as described in the Application, it was immediately apparent to the Tribunal that fundamental to the Applicant’s claim was her belief that ASIO was bugging her home and cooperating with the CIT by sharing the Applicant’s private information. She alleged that the CIT used this information to discriminate and victimise her. This information included ASIO knowing of her intention to appeal the March 2012 decision before she lodged the appeal on 4 April 2012, sharing this information with the CIT and the CIT using this information by Mr C making comments in classes to breach the Applicant’s privacy and to influence her not to proceed with her appeal.
85.The Respondent pointed out[41] that the Applicant relies on her allegation of information sharing by ASIO and CIT, as the critical link between her private information and Mr C. The Tribunal agrees.
[41] Respondent’s Submissions, page 10 at [22]
86.The Respondent’s position was based on the Applicant providing no evidence beyond mere assertions that ASIO had conveyed information about her mental state or intentions during the relevant period. The Respondent also claimed that it was impossible to demonstrate that ASIO had looked into Ms Shammas’s mind, and further, there was no evidence capable of supporting an explanation of why ASIO worked through the CIT to pursue a particular action. Dr Jarvis described this allegation as manifestly fanciful.
87.The Tribunal has carefully considered all of the matters relating to ASIO which the Applicant has put before the Tribunal.
88.The Applicant alleges that the ASIO letters she annexed to her SOFC are substantial, relevant and probative evidence to prove that she was under surveillance by ASIO while a student at the CIT Reid, and that CIT staff and its employees were cooperating with ASIO employees in relation to her privacy, as part of ASIO’s investigations about her. She also alleged that CIT and its staff utilized her ‘condition under ASIO surveillance’ and unlawfully breached her privacy by publicly making inappropriate and discriminatory comments and instructing students to harass her by ‘reflecting’ her private information to affect her psychologically and impede her appealing successfully her case of discrimination on the ground of race against CIT.
89.The Tribunal is not satisfied that any of the documents or letters annexed to her SOFC and marked A to G are evidence of ASIO having Ms Shammas under surveillance during the relevant period, nor do these documents support the Applicant’s assertion “that CIT staff, because of their cooperation with ASIO in relation to her privacy, were aware of her intention to file an application to appeal the decision of Ms Lennard.”[42] These letters do no more than show ASIO’s standard practice, during the relevant period, was to neither confirm nor deny its interest in any person.
[42] Applicant’s Statement of Facts and Contentions, at [87]
90.The Tribunal agrees with the Respondent’s submissions that the Applicant will not be able to provide objective evidence to support her allegations concerning ASIO.
91.The Tribunal also noted that in Ms Shammas’s Supreme Court proceedings, Shammas v Canberra Institute of Technology[43], Penfold J of the ACT Supreme Court made the following comments about the Applicant’s allegations that she was under ASIO surveillance:
72. As noted, the bulk of Ms Shammas’s submissions in this matter have related to alleged surveillance of her by ASIO, and the alleged involvement of ASIO in directing or influencing the conduct of both students and staff at CIT, as well as the conduct of both Senior Member Lennard and President Stefaniak. I have formed the impression that, however sincerely held were Ms Shammas’s initial concerns about the treatment she felt she was receiving in her CIT classes, her current aim is to air her allegations about ASIO as often as possible in whatever forum might be available.
[43] [2012] ACTSC 197
92.The Tribunal noted that at the hearing of the present matter, not only did Ms Shammas continue to frequently allege that ASIO has had and continues to have her under surveillance; she also alleged that ASIO had influenced Dr Watchirs, Senior Member Lennard, President Stefaniak and the Judges of the Courts, who had been involved in her matters.
93.The Tribunal further noted that the Applicant alleged that Mr C used words in his lectures that she had used in a Centrelink interview in Civic, although she made no allegation that ASIO had bugged the Centrelink offices and she provided no objective evidence that could support such a finding.
94.The Tribunal is satisfied, having considered all of the material before the Tribunal, that the Applicant has not presented any objective evidence to suggest that the Applicant was treated unfavourably, or subjected to any objective detriment, by the Respondent.
95.Given the Tribunal’s findings, the Tribunal is also satisfied the Applicant has not presented, and cannot present, any objective evidence establishing that the Respondent or Mr C could have known on either 22 or 29 March 2012 of the Applicant’s intention to appeal the March 2012 decision.
96.It is not in dispute that the Applicant successfully completed the subject Mr C taught. It is also not in dispute that the Applicant lodged her appeal from the March 2012 decision within time and that she pursued that appeal in the appeal jurisdiction of the Tribunal and subsequently in the ACT Supreme Court and the Court of Appeal. That these appeals were all unsuccessful has no bearing on the present matter.
97.The Tribunal is further satisfied that the Applicant has not provided any objective evidence to support her claim that Mr C had actual knowledge of her racial background or that he was made aware of her race by his employer, the Respondent. Further, the Applicant has not provided any objective evidence to support her assertion that Mr C made the alleged comments because of her race. There was simply no evidence that Ms C was directing comments to the Applicant other than her own interpretation that he had directed them at or to her.
98.In relation to the Applicant’s claim that she was victimized because she had begun proceedings in the Tribunal, the relevant section of the Discrimination Act is section 68, which is set out at the end of the decision. As stated above, the Applicant must satisfy the Tribunal that she was subjected to a detriment because she had begun proceedings in the Tribunal. The Tribunal is satisfied that the Applicant has not provided any objective evidence that she suffered a detriment.
99.The Applicant claimed[44] that the Respondent’s alleged conduct was designed to stress, intimidate and affect her psychologically and to give up and/or discontinue appealing the March 2012 Decision. While the Applicant has provided the medical evidence referred to in paragraph 46 above, the Tribunal has noted and concurs with the Respondent’s submissions in paragraph 47 above. The Tribunal refers to its findings above.
[44] Applicant’s Statement of Facts and Contentions, at [28]
100.The Tribunal is satisfied that the Applicant has not provided any objective evidence to support her assertion that Mr C engaged in any conduct because she had begun a proceeding in the Tribunal.
101.The Applicant relied on the same allegation in her victimization claim, namely that ASIO shared her private information with the Respondent and this was how Mr C knew of her intention to appeal, in her discrimination application. The Tribunal has already dealt with this allegation above and found that the Applicant has not provided, and will not be able to provide, objective evidence to support such an allegation.
102.The fact is that the Applicant did lodge an appeal from the March 2012 decision within time and this is the opposite of what she claimed. The Tribunal was satisfied that she was not prevented from lodging her appeal.
CONCLUSION
103.Having considered all of the submissions and documentation from both parties and for the reasons set out above, the Tribunal cannot be satisfied that the evidence presented supports the Applicant’s claim of unlawful discrimination from the Respondent to the Applicant. The Respondent has satisfied the onus to show that the Applicant’s complaint lacked an arguable case.
104.Ms Shammas’s Application based on discrimination and/or victimisation is foredoomed to fail.
105.The Tribunal will dismiss the Applicant’s Application pursuant to section 32(2)(b) of the ACAT Act.
………………………………..
Ms E. Symons - Presidential Member
LEGISLATION
ACT CIVIL AND ADMINISTRATIVE TRIBUNAL ACT 2008
6Objects of Act
The objects of this Act are—
(a)to provide for a wide range of matters arising under legislation to be resolved by the ACT Civil and Administrative Tribunal; and
(b)to ensure that access to the tribunal is simple and inexpensive, for all people who need to deal with the tribunal; and
(c)to ensure that applications to the tribunal are resolved as quickly as is consistent with achieving justice; and
(d)to ensure that decisions of the tribunal are fair; and
(e)to enhance the quality of decision making under legislation; and
(f)to encourage, and bring about, compliance in decision making under legislation; and
(g)to encourage tribunal members to act in a way that promotes the collegiate nature of the tribunal; and
NoteUnless otherwise provided by this Act, the tribunal for the exercise of functions, other than functions in relation to applications, is made up of the presidential members (see s 93).
(h)to identify and bring to the Attorney-General’s attention systemic problems in relation to the operation of authorising laws.
7Principles applying to Act
In exercising its functions under this Act, the tribunal must—
(a)ensure the procedures of the tribunal are as simple, quick, inexpensive and informal as is consistent with achieving justice; and
(b)observe natural justice and procedural fairness.
9Applications under authorising laws
A person may apply to the tribunal if an authorising law provides that the application may be made.
NoteA registrar may help a person make an application to the tribunal as the registrar considers appropriate—see s 112 (1) (b).
DISCRIMINATION ACT 1991
7 Grounds
(1) This Act applies to discrimination on the ground of any of the following attributes:
(a) sex;
(b) sexuality;
(c) gender identity;
(d) relationship status;
(e) status as a parent or carer;
(f) pregnancy;
(g) breastfeeding;
(h) race;
(i) religious or political conviction;
(j) disability;
(k) industrial activity;
(l) age;
(m) profession, trade, occupation or calling;
(n) association (whether as a relative or otherwise) with a person identified by reference to an attribute referred to in another paragraph of this subsection;
(o) spent conviction within the meaning of the href=" title="A2000-48">Spent Convictions Act 2000.
(2) In this Act, a reference to an attribute mentioned in subsection (1) includes—
(a) a characteristic that people with that attribute generally have; and
(b) a characteristic that people with that attribute are generally presumed to have; and
(c) such an attribute that a person is presumed to have; and
(d) such an attribute that the person had in the past but no longer has.
8What constitutes discrimination
(1)For this Act, a person discriminates against another person if—
(a)the person treats or proposes to treat the other person unfavourably because the other person has an attribute referred to in section 7; or
(b)the person imposes or proposes to impose a condition or requirement that has, or is likely to have, the effect of disadvantaging people because they have an attribute referred to in section 7.
(2)Subsection (1) (b) does not apply to a condition or requirement that is reasonable in the circumstances.
(3)In deciding whether a condition or requirement is reasonable in the circumstances, the matters to be taken into account include—
(a)the nature and extent of the resultant disadvantage; and
(b)the feasibility of overcoming or mitigating the disadvantage; and
(c)whether the disadvantage is disproportionate to the result sought by the person who imposes or proposes to impose the condition or requirement.
18Education
(1)It is unlawful for an educational authority to discriminate against a person—
(a)by failing to accept the person’s application for admission as a student; or
(b)in the terms or conditions on which it is prepared to admit the person as a student.
NoteThe Legislation Act, dict, pt 1 defines fail to include refuse.
(2)It is unlawful for an educational authority to discriminate against a student—
(a)by denying the student access, or limiting the student’s access, to any benefit provided by the authority; or
(b)by expelling the student; or
(c)by subjecting the student to any other detriment.
68Victimisation
(1)It is unlawful for a person (the first person) to subject someone else (the other person) to any detriment because—
(a)the other person has—
(i)begun a proceeding in the ACAT in relation to this Act; or
(ii)made a discrimination complaint; or
(iii)given information or produced a document or other thing to a person exercising a discrimination function; or
(iv)given information, produced a document or thing or answered a question when required to do so under the HRC Act in relation to a discrimination complaint; or
(v)given evidence, or produced a document or thing, to the ACAT in relation to this Act; or
(vi)reasonably asserted any rights that a person (including the other person) has under this Act; or
(vii)claimed that a person has committed an act that is unlawful under this Act; or
(b)the first person believes that the other person proposes to do something mentioned in paragraph (a).
(2)Subsection (1) (a) (vii) does not apply in relation to a claim that is false and is not made honestly.
(3)In this section:
discrimination complaint means a complaint under the HRC Act about an unlawful act under this Act, part 3 (Unlawful discrimination), part 5 (Sexual harassment), section 66 (Unlawful vilification—race, sexuality etc) or this part.
discrimination function means a function under the HRC Act in relation to a discrimination complaint.
HRC Act means the Human Rights Commission Act 2005.
73 Aiding etc unlawful acts
A person who aids, abets, counsels or procures someone else to do an act that is unlawful under part 3, part 5, section 66 or part 7 is taken, for this Act, also to have done the act.
HUMAN RIGHTS ACT 2004
8 Recognition and equality before the law
(1) Everyone has the right to recognition as a person before the law.
(2) Everyone has the right to enjoy his or her human rights without distinction or discrimination of any kind.
(3) Everyone is equal before the law and is entitled to the equal protection of the law without discrimination. In particular, everyone has the right to equal and effective protection against discrimination on any ground.
Examples of discrimination
Discrimination because of race, colour, sex, sexual orientation, language, religion, political or other opinion, national or social origin, property, birth, disability or other status.
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see title="A2001- 14">Legislation Act, s 126 and s 132).
21Fair trial
(1)Everyone has the right to have criminal charges, and rights and obligations recognised by law, decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
(2)However, the press and public may be excluded from all or part of a trial—
(a)to protect morals, public order or national security in a democratic society; or
(b)if the interest of the private lives of the parties require the exclusion; or
(c)if, and to the extent that, the exclusion is strictly necessary, in special circumstances of the case, because publicity would otherwise prejudice the interests of justice.
(3)But each judgment in a criminal or civil proceeding must be made public unless the interest of a child requires that the judgment not be made public.
HUMAN RIGHTS COMMISSION ACT 2005
53AReferral of discrimination complaints
(1)This section applies if—
(a)either—
(i)a complainant is given a discrimination referral statement under section 45 (2) (d); or
(ii)a statement under section 82 (1) is included in a final report in relation to a complaint; and
(b)within 60 days after the statement is given, the complainant requires the commission to refer the complaint to the ACAT.
(2)The commission must—
(a)refer the complaint to the ACAT; and
(b)tell the complainant and the person complained about in writing about the referral.
Note The commissioner must also close the complaint (see s 78 (2) (d)).
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